Wade v. Kirksville College of Osteopathy and Surgery

• Decision Date: 13 September 1954
• Docket Number: No. 43853,No. 1,43853,1
• Parties: Charles Byron WADE et al., Appellants, v. KIRKSVILLE COLLEGE OF OSTEOPATHY AND SURGERY, a Corporation; the Washington University, a Corporation; and Mae Allen, Executrix of the Estate of Julia Victoria Wade, Respondents
• Court: Missouri Supreme Court

Page 811

270 S.W.2d 811

Charles Byron WADE et al., Appellants, v. KIRKSVILLE COLLEGE OF OSTEOPATHY AND SURGERY, a Corporation the Washington University, a Corporation; and Mae Allen, Executrix of the Estate of Julia Victoria Wade, Respondents.

No. 43853.

Supreme Court of Missouri, Division No. 1.

Sept. 13, 1954.

Finch & Finch, F. L. Jackson, Cape Girardeau, Barton & Arnold, Stephen Barton, Benton, for appellants.

Bailey & Craig, Sikeston, Limbaugh & Limbaugh, Cape Girardeau, for respondents.

LOZIER, Commissioner.

This is a will contest filed in the Circuit Court of Scott County and transferred on change of Venue to the Cape Girardeau Court of Common Pleas, Cape Girardeau County. The verdict sustained the will and judgment was entered accordingly. Plaintiffs-contestants (herein called contestants) appealed. As the record affirmatively shows both that title to real estate is involved and that 'the amount in dispute, exclusive of costs, exceeds' $7,500, this court has appellate jurisdiction. Art. V, Sec. 3, Const., 2 V.A.M.S., p. 31; Donnan v. Donnan, Mo.Sup., 264 S.W.2d 318.

Contestants' only allegations of error are that the trial court erred in giving Instructions 5 and 6 at the request of defendants-proponents (herein called proponents). Proponents deny that the two instructions were improperly given and assert that, in any event, contestants failed to make a submissible case. However, we can assume without deciding that contestants did make a submissible case. This, because we have concluded that the errors, if any, in Instructions 5 and 6 do not require a reversal and remand.

Julia Victoria Wade of Benton, Scott County, Missouri, died on April 16, 1951. On March 12, 1949, she had executed her last will and testament. The document, including the attestation clause, was in her own handwriting. In 'Article 1,' she directed payment of debts and funeral expenses. In 'Article 2,' she gave and bequeathed $1 to each of five named nephews, three named nieces and the named adopted son of a predeceased brother, Sidney. In 'Article 3,' she bequeathed funds for the purchase of a monument for each of the graves of two uncles. In 'Article 4,' she devised and bequeathed the remainder of her estate 'to the following institutions namely as follows--1st Washington University School of Medicine, St. Louis, Missouri, seventy five percent (75%) of my holdings and 2nd For benefits received through osteopathy I bequeath the remaining twenty five (25%) to Kirksville College of Osteopathy and Surgery, Kirksville, Missouri.' She appointed Mrs. Mae Allen as executrix without bond.

The two institutions and the executrix are proponents. Contestants are the nephews, nieces, grandnephews and grandnieces of Julia (a nephew and niece named in the will predeceased her) and Sidney J. Wade, described in 'Article 2,' of the will as the adopted son of her predeceased brother Sidney.

The sole issue pleaded and submitted by contestants was Julia's mental capacity, at the time the document was executed, to make a will. Proponents' evidence established due execution. Each of the three attesting witnesses (the executrix and two other women neighbors, each of whom had known Julia for over forty years) testified that Julia was sane at the time the will was executed. Proponents' other evidence was corroboratory of the testimony of the attesting witnesses as to Julia's sanity. Contestants offered substantial evidence (we have assumed without deciding) tending to show that Julia was not of sound mind when she executed the will. The weight of the evidence, of course, was for the jury which, by its verdict, found that, at the time she executed the will, Julia had the mental capacity so to do.

The evidence relating to the claimed impropriety of Instructions 5 and 6 (insofar as now urged by contestants) was: Julia was 81 years old when she died. She never married. She left surviving her no brothers or sisters. For many years she and her brother Robert maintained a home in Benton. Robert died in 1946.

Julia was bedfast for several years before her death. She had high blood pressure and a hardening of the arteries that accompanies age. Since 1946, her doctor had been an osteopathic physician, a graduate of the Kirksville College of Osteopathy and Surgery, an instant institution-beneficiary-proponent. Julia's father and one brother, Sidney, had been physicians. Sidney had received his medical education at Missouri Medical College, St. Louis, 'which now belongs to the Washington University,' the other institution-beneficiary-proponent.

The transcript shows that one niece-contestant lives in the State of California. One nephew-contestant lives in Montana. A nephew-contestant and a niece-contestant live in St. Louis, Missouri. Nephew-contestant Byron Wade lives in Benton, Missouri. Another nephew-contestant lives in Oran, Scott County, Missouri (of which county Benton is the county seat). The residences of the contestants-heirs of the nephew and niece named in the will and predeceasing Julia were not shown. The residence of contestant Sidney J. Wade (the adopted son of Julia's predeceased brother Sidney) is in Jefferson City, Missouri. Except as hereinafter noted, the record does not show that any of the contestants ever visited or even corresponded with their bedfast aunt or grandaunt Julia.

Byron Wade (the nephew-contestant who lives in Benton) testified that, after his uncle Robert's death, he gave his aunt Julia 'certain help'; he administered his uncle Robert's estate in which she had an interest; she 'handled' her own properties; she would ask him for advice on her business affairs 'three or four times a week'; he paid her taxes for her; she would telephone him at his office and he would 'run up there to help her when I needed to be on the job'; he 'had trouble keeping help' at his aunt's; 'they would leave and I had to make other arrangements to get somebody else'; once for about three months (including the month in which the will was executed, according to another witness) when he could get no other help, Byron stayed with his aunt at night and his wife stayed with her during the days; Julia could not get along with the women he sent to help her; 'they never suited her'; in hendling her affairs, he 'had no difficulty with her * * * those matters were worked out on a business basis'; he was 'just looking after her stuff and trying to look out for her welfare and I was having trouble keeping people there, that was the main trouble I had with her'; she 'didn't discuss the rest of her relatives, didn't ever talk about them much.'

Mrs. Byron Wade, who often visited Julia, corroborated her husband as to the difficulty in keeping help for Julia and as to her (Mrs. Wade) staying with Julia in the daytime during the three months her husband stayed there at night.

Mrs. Sidney J. Wade, St., the widow of Julia's brother Sidney, stayed with Julia the three or four weeks following Robert's death in 1946 but never visited her thereafter.

Contestants' evidence was that Julia would call Byron to her home, discuss business matters with him, ask his advice and then 'say terrible things about him' after he left. Julia had these 'illusions' about Byron: He, or his son Charles, had taken $700 cash which she had hidden in her bed and later found; in settling the estate of her brother Robert, he (Byron) 'got what was coming to her.'

As to the latter, Byron Wade testified that Julia never accused him of taking 'her share' of Robert's estate; she understood that she had an agreement with Robert that each was 'to will their property' to the other; she made a will to that effect and thought he had; she learned after his death that he had not.

Instruction 5 was: 'The court instructs the jury that Julia Wade had the right to dispose of her property by will as she chose, even to the entire exclusion of those who, but for the will, would be the heirs of her estate, and if you find and believe from the evidence that, at the time she executed the will in question, Julia Wade had the mental capacity necessary to make a will, then the jury is not to consider whether the disposition made by her is appropriate or unappropriate.'

Contestants say that Instruction 5 is erroneous because: One of the factors to be considered by the jury in determining Julia's mental capacity was her capability of understanding 'the reasonable claims of the persons who may have had reasonable and natural claims on her bounty'; and that the instruction told the jury that it was not to consider the appropriateness or unappropriateness of the disposition Julia made of her property; therefore, the instruction excluded from the jury's consideration an 'essential factor' in determining whether Julia had the mental capacity to make a will.

'Evidence of unnatural provisions of a will is not sufficient in itself to establish either undue influence or mental incapacity. The law recognizes that a person of requisite age, free from undue influence and of sound mind, may, if he so desires, execute an unnatural will, disinherit his own kin, and bequeath his property to an entire stranger; but, where there is other substantial evidence of testamentary incapacity or undue influence, the unnatural provisions of the will, if any, may be considered, together will the other facts and circumstances tending to show such incapacity or undue influence.' Kaechelen v. Barringer, Mo.Sup., 19 S.W.2d 1033, 1037. See Guidicy v. Guidicy, 361 Mo. 1127, 238 S.W.2d 380, 384[2, 3], and cases cited therein.

In a recent will contest case, this court said 'that all instructions must be read and construed together; that where a series of instructions thus taken together contain a complete exposition of the law and cover every phase of the case, there is no prejudicial error; and that when taken and construed together, they harmonize and clearly and specifically require the finding of all essential elements, then any...